Short Term Profits Over Long Term Principles; Google's Caving On Book Scanning Is Bad News

from the unfortunate-reality dept

Today the tech/business press was filled with stories about how Google has settled the lawsuits from authors and publishers over its book scanning project. Google is paying $125 million, and will be changing some of how its book search system works. Authors and publishers will allow books to go online, but it locks Google in to a specific business model that might not be the most reasonable and, most importantly, it does not answer the legal question concerning the overall legality of book scanning. Pretty much any way you look at it, Google caved here -- and this is unfortunate for a variety of reasons.

Two years ago, there was a story in the NY Times about how Google's legal department saw all of these lawsuits against the company as a way to stand up on principle and make better law. Specifically, the company positioned itself as being willing to fight certain lawsuits on principle in order to get precedent setting rulings on the books in support of openness, fair use, safe harbors and many other important issues. The company suggested that, rather than settle, it would fight these lawsuits knowing that it alone, with its big war chest of money, could fight some of these battles that tiny startups could never afford.

It may not be surprising, but it's safe to say those days are long gone. We've been seeing it time and time again, from Google's decision to pay off entertainment companies not to sue YouTube to the decision to pay off the Associated Press for including its headlines in Google News. Perhaps one of the biggest legal battles, however, was over Google's book scanning project. Google took it upon itself to scan numerous books and make the results searchable online. The company put significant restrictions in place, such that it's almost impossible for someone to do a search and read the entire book that way. You can only see a few consecutive pages. You can't print. However, you can search and find new and interesting books that you might want to buy. I know I've bought dozens of books this way.

Not surprisingly, authors and publishers sued Google over this, and went around claiming how awful it was -- even though it was really not all that different than creating a much better card catalog for books. The purpose was to help people find more books that were useful, rather than to break any sort of copyright. And, in fact, studies showed that books that showed up in Google's search improved sales. In other words, it should have been a win-win situation all around. But, like so many content providers, authors and publishers falsely overvalue the content and undervalue services that make that content more valuable.

However, more important that was the simple principle of the whole thing. Last year the New Yorker ran a fantastic article explaining how having authors and publishers quibble over copyright issues while preventing the widespread archiving and sharing of information may turn out to be one of the most ridiculous arguments ever, while our culture get locked up and fades away.

So, it's quite upsetting to see Google cave on this. The settlement does not establish any sort of precedent on the legality of creating such an index of books, and, if anything pushes things in the other direction, saying that authors and publishers now have the right to determine what innovations there can be when it comes to archiving and indexing works of content. Unfortunately, this was really inevitable. As was the case with Google caving on YouTube and the Associated Press, it becomes a situation where Google realizes it can throw a little cash at the problem to make it go away -- while also creating a large barrier to entry for any more innovative startup. From a short-term business perspective this might make sense, but from a long-term business perspective (and wider cultural perspective) it's terrible.

It will only encourage more lawsuits against Google for trying to innovate, as more and more people hope that Google will settle and throw some cash their way. Furthermore, it greatly diminishes the incentives for making books more useful, and that's damaging to our cultural heritage. While it was always silly to believe that Google ever really operated on a higher principled stance, rather than a short-term business focus, this settlement is tremendously disappointing.


Reader Comments (rss)

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  •  
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    Anonymous Coward, Oct 28th, 2008 @ 1:59pm

    What if the law suit was going badly... very badly; and rather than setting a precedent which would've majorly sucked, they instead threw in some money and managed to make a (smaller) win-win scenario of the whole thing...

     

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    Anonymous of Course, Oct 28th, 2008 @ 2:47pm

    That is bad news.

    Might explain the strange behavior of Google
    books I've noticed lately.

    I was looking for High Voltage Laboratory Techniques
    by Craggs and Meek published by Butterworth in 1954.
    One company was offering reprints on demand from a
    U-Mich microfilm of the book. But they discontinued
    that service. Then I found a repro of very same U-Mich
    microfilm on Google Books. Oh Joy! But wait... it's
    only bits and pieces. And the links to and explaination
    of why it's only bits and pieces do not work!

    There's no way to buy the book and for whatever reason
    Google Books is no help. I probably end up borrowing
    a copy from the university library then copy it.

     

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    Kiba, Oct 28th, 2008 @ 2:52pm

    Economic Hitmen

    So how these economic hitmen get away with bullying google and how we, the consumer fight back?

    I feel so powerless even though my wallet does have an immediate impact on those around with me.....

     

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    Nate, Oct 28th, 2008 @ 2:55pm

    The Original "Alternative" Business Model

    Mike, Mike...

    The one thing that I think you fail to take into account when you lament the short-sightedness of content producers and their ill-advised efforts to remove their content, its free advertising, and the opportunity for other, tangible goods to be sold is that there's another alternative business model operating here that these folks just can't see through:

    Sue all out of proportion to your perceived losses at the slightest indication that someone may have looked cross-eyed at you. It's the original "free," and, I daresay, the American way.

     

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    LostSailor, Oct 28th, 2008 @ 3:18pm

    Good For Google

    For all the wailing and gnashing of teeth, and even though it's contrary to Mike's ardent desire that such content be "freed," this is not a bad agreement at all. Quite the opposite.

    Now, I've only scanned through the actual text of the agreement, but it actually provides for far greater use of scanned books than Google might have been able to do if it just asserted its right of fair use.

    First, it pretty much clears up any possible lawsuit by a publisher or author (assuming it's accepted by the court) and also shields the libraries that were participating in the project from any liability. It also provides Google with a competitive advantage now that publishers and authors will be even more encouraged to participate in the project since they know their rights are protected...and they'll get paid something.

    Second, it allows for much wider use of digital copies of the books and provides Google with safe harbor. Google is allowed to fully display out-of-print or otherwise commercially available books that are still in copyright and will set up an automated process for making that determination. They can still provide limited display of "snippets" of the content for in-print and commercially available books.

    Educational institutions and public libraries will get the rights to display all the books in-branch.

    Participating libraries (i.e., those that make their collections available for scanning) have even greater latitude than they would have for using the digital copies they received back from Google.

    All in all, while you may not have gotten the knock-down, drag-out fight you wanted to see, Mike, this agreement will get more books on to Google with much greater options for users to read and use the content much sooner. Cooperation between the publishers/authors, libraries, and Google will mean more books will be available for the service (and I'd anticipate a scenario where all newly published books are digitally sent to Google for the project automatically upon publication).

    All because Google had the foresight to realize that publishers and authors have rights too, and that if reasonably addressed (and this is really quite a reasonable agreement), new cooperative models can actually be put into practice.

     

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      Grayputer, Oct 29th, 2008 @ 8:53am

      Re: Good For Google

      Actually you missed a few things: 1 - most of the cash goes to setup a clearing house potentially reducing Google's cost to acquire scanned images (publishers can submit digital); 2 - the long term impact of the extended rights to display larger/more quantity of text gives Google a HUGE advantage over the competitor that has 'only' fair use rights. Larger search market share frequently translates to higher per ad revenue charges (if page view model), more volume plus higher rates implies larger profit (admittedly some of which is shared); 3 - the join revenue sharing agreement can drive more publishers to join the team, increasing available content. More diverse content is an additional magnet to 'draw eyes', reinforcing point 2. It also helps get publishers to provide 'pre-scanned/digital images', reducing google's scanning costs.

      In effect this was a non zero sum resolution, a win for everyone. If this works, Google gets a bigger market share with all that means, publishers/authors make more money, and consumers have a large quantity and variety of material available for search.

      Strikes me as a VERY GOOD long term deal for Google. More user eyes per day can lead to better rates across the board, not just in book searches.

       

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        LostSailor, Oct 29th, 2008 @ 9:57am

        Re: Re: Good For Google

        As I said, I have only had a chance to scan through the settlement document, so I didn't cover everything in it, such as easier access to digital works (free) for the visually impaired.

        I understand that Mike would have liked to have seen this brought to trial where he would hope legal protections for intellectual property would be brought down a notch or two, but that would have been an unlikely outcome. It's possible that Google's mere scanning of copyrighted material for indexing and displaying short snippets of the content in search results may have fallen under fair use. But this ignores one other issue (not part of the suit against Google): as part of the Google book project, the participating libraries were to receive digital copies of the scans and it is not at all clear that they would have the right to actually do anything with them except archiving.

        Mike would like to see all these restrictions removed and frequently downplays the rights of content creators and publishers.

        But, as you've pointed out, this is a smart business decision on Google's part. It not only resolves all of the outstanding issues between publishers, authors, Google, and the libraries, but actually allows for much wider use of the scanned material.

        Instead of having our culture "locked up" and fading away, this will provide active incentives for the preservation, and renewed use of such content.

         

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          Mike (profile), Oct 29th, 2008 @ 7:20pm

          Re: Re: Re: Good For Google

          Mike would like to see all these restrictions removed and frequently downplays the rights of content creators and publishers.

          This is incorrect. I merely play up the rights of society and the overall ability to expand the economy for everyone -- including content creators and publishers.

           

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            LostSailor, Oct 30th, 2008 @ 8:18am

            Re: Re: Re: Re: Good For Google

            Thanks for the correction; I don't want to misrepresent your position.

            But, because copyright is a balance between the rights of content creators and the rights of the public, playing up the rights of the public or expanding them necessarily downplays the rights of content creators.

            I'm not saying this is a bad thing, and I agree that the balance has gone to far in favoring copyright owners, but there still needs to be a balance.

             

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              Mike (profile), Oct 30th, 2008 @ 2:28pm

              Re: Re: Re: Re: Re: Good For Google

              I'm not saying this is a bad thing, and I agree that the balance has gone to far in favoring copyright owners, but there still needs to be a balance.

              I don't think there needs to be balance if you can create a situation where both sides win.

               

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    LostSailor, Oct 28th, 2008 @ 3:19pm

    Settlement Documents

    I meant to put this into the earlier post. The settlement document submitted to the court can be found here:

    http://books.google.com/booksrightsholders/agreement-contents.html

     

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    bowerbird, Oct 28th, 2008 @ 8:18pm

    how much is the cost to the reader?

    we can't really say if this is a good or bad settlement
    until we know the answer to this important question:
    how much will the cost to the reader be?

    if it's a high cost, the public just got screwed, royally.

    and the fact that nobody has said what the cost will be
    -- it should be crystal clear -- is a _very_ bad sign...

    -bowerbird

     

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      Fred Zimmerman, Oct 29th, 2008 @ 6:24am

      Re: how much is the cost to the reader?

      Prices will be set by the publishers.

      If they are too high, they won't sell many online books, and everyone will lose.

      If they are too low, publishers won't bother.

      If you personally think a price for something is too high, don't buy it! You're simply expressing a personal preference, not detecting a plot against the public.

       

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    Kevin Donovan, Oct 28th, 2008 @ 8:33pm

    Very good post

    It's really too bad that they are forced to choose Wall Street earnings over principles. As Joi Ito says, "the capitalists aren't a whole lot of use when it comes to" openness, fair use, safe harbors, etc.

     

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    Anonymous Coward, Oct 29th, 2008 @ 12:08am

    Justice Dep't

    Is it possible that because of the army of lobbyist's that the content industry has, and the impending lawsuit against Google(Justice Dep't has already hired a well-known outside attorney to lead the charge)for antitrust, Google is just trying to not make waves.

     

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    bowerbird, Oct 29th, 2008 @ 2:35am

    well, it's like this. we are _not_ going to let the capitalists
    charge us _ransom_ to _rent_ our own culture back to us...

    we buy it outright -- via eminent domain -- for a price that
    _we_ decide, and we write the contract the exact same way
    that _they_ write 'em -- namely, "in perpetuity..." and "in all
    media, including those which have not yet been invented..."

    and we make it clear that this one-time money is all they get,
    and that they only get a chunk of it up-front, and the rest will
    come "later on", you know, once "all the profits start to roll in,"
    kinda like artists used to receive royalties, winkwinknudgenudge.

    -bowerbird

     

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    Twinrova, Oct 29th, 2008 @ 4:07am

    Google isn't the only one.

    I find it funny the link between all these IP lawsuits and the "payouts" they obtain is overlooked.

    How can any business win a lawsuit (when they're in the right) if the judge in question is so stupid, he thinks "DCMA" is a song written by people from a village?

    Change the laws and blogs like this become a thing of the past.

     

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    bowerbird, Oct 29th, 2008 @ 12:44pm

    > If you personally think a price for something is too high, don't buy it!

    that's a fine argument in general. but _not_ when it comes to our culture.

    rich people and corporations do _not_ own our culture. everybody does.

    the wisdom we have collected over the centuries belongs to _all_ of us,
    and to let some entities hold it for ransom so that only the rich people
    have access to it is an unwise strategy that will only impede progress...

    -bowerbird

     

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    Researcher, Nov 4th, 2008 @ 2:15am

    Google control?

    Thanks for the most insightful and comprehensive overview Amongst my many questions I wonder what you think the implications are for ebooks/digital books and how easy will it will be for Google to actually contain the information?

     

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    CVW, Nov 6th, 2008 @ 4:29am

    Monetisation again

     

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    CVW, Nov 6th, 2008 @ 4:33am

    "And, in fact, studies showed that books that showed up in Google's search improved sales. In other words, it should have been a win-win situation all around."

    Unless you are creating orginal content and paying for it using book sales through affiliate programs like Amazon. Then you just get to see your site shoved down the SERPS while Google Books "partners" with every major bookseller around and takes the cash themselves.

    It's only really good for one party here - let me guess!

     

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    Dale Clarke, Nov 9th, 2008 @ 3:00am

    How can it be a good settlement when no one outside the USA will have access, Google promised a world access to all its searches.

    I personally feel the publishers have lost a bigger market for their books, as the real cost of books being put out into the public domain is huge and that is just in the printing costs.

    Book Publishers are acting like the Music industry did 10 years ago, I they have not learned from it. They are going to suffer as the Ebook and Enewspaper/Emagazine industry is gaining pace and will explode in the next few years as the new e-ink technologies come into being. This could of been the beginning for Google aka Itunes alas it is a fizzled attempt at protecting itself.

    I think the Google honeymoon is over and they have made some odd decisions lately and their core programs have suffered a lack of proper guidance.

     

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    adam jasper, Feb 15th, 2009 @ 3:51am

    authors guild versus google

    The actions of the Author's Guild smack of cynicism. Even the named plaintiffs in the 2005 are a children's book author (Betty Miles) an octogenarian poet (Daniel Hoffman) and Herber Mitgang, himself 85 at the time the documents were submitted to the court. I can imagine them being wheeled out of their rest villages with blankets over their knees roaring "them bandits want to do WHAT? Daguerrotize my books on the pornographic interwebs! While I live and breath, never!" At least Mitgang had been president of the Author's Guild, and through his fog of senility might have had some grasp of what he had to gain.

    The settlement is a bad result, because books should be available to be scanned to allow fair use anywhere, anytime, internationally. If you want to help the horn of Africa, you can do a hell of a lot more by easing access to a few crucial pages of an engineering manual or a journal of public health than by donating $15 a month for gruel and chalk. And if you care about an open, tolerant, western society, then you're going to do your utmost to ease access to books, which at their best are the carefully made products an individual can produce.

    Which brings me to my next point. One of the few joys of being an author is that one can craft a book down to the last word, alone. Unlike a boeing, it doesn't take a cast of thousands to produce. It only takes a lot to distribute.

    The internet, in reducing the difficulty of distribution, threatens the dominant role that large publishers have over the distribution of texts. God bless it for doing so, and pray that these geriatrics soon wheel themselves out of the picture.

     

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    Michael W. Perry, Apr 30th, 2009 @ 5:19pm

    The View from Nerd Castle

    I seemed to have joined this discussion rather late, but I'll add my comments. I've one of the seven authors or their representatives who requested that the court delay the automatic opt-in deadline of May 5, 2009 by four months. Google responded by suggesting two months. We won, so the new automatic opt-in date is September 4.

    Many of the posters here seem to be peering out from the battlements of Nerd Castle as the Barbarians Who Know Not the Internet pour over the hill--or so they imagine. This dispute has never been about getting anything new and selling well available in searchable form online. Those who own that content have ample legal talent and money to protect their works, so all this chatter about their not understanding technology is silly. The threat isn't against them. They are capitalists to the core. If some new scheme meets their production standards (dubious right now) and is profitable (still to be determined), they'll be happy to join the party. Calling them names doesn't make them feel inclined to join you.

    The real problem lies with a different class of people. The Author's Guild and the lawyers for the "Author Sub-Class" clearly didn't represent all authors and that for the Association of American Publishers didn't represent all publishers. It absurd to pretend that they did and the complexity of those two classes makes any effort to apply tort law class action principles look absurd. This four-month delay will give some of those people time to speak up. These are the little people that this agreement has shoved aside, authors, for instance, who don't have agents to look out for their interests or an elderly widow no longer capable of managing what her husband wrote. These are books Google likes to call "orphan works" even though she still lives at the same address mentioned in the copyright assignment. Google wants to give her money to someone else, particularly those who opt-in and earn a lot of money for Google.

    The fact is that copyright law gives the holder the right to control the copying of what he has written--including not copying it at all. Whether it goes onto paper, an audio tape, a film, or even into a Google database is irrelevant. All are copyright-protected derivatives. The fact that Google is being miserly to its customers, doling out one slice of the book here and another there is irrelevant. Google is using (in this case as a profit mechanism) the entire text of the book. It's no defense of a movie made from a book that 90% of the book's scenes aren't in the movie or that some of the movie is different from the book and that's in spite of the fact that scriptwriters and directors 'transform' the book in many ways. Google does nothing but have machines that scan and OCR books. And I might add that it is no defense for copyright infringement that a movie would increase sales of a book. That only enters when damages are being determined, and there the damages are those if the copyright owner sold the film rights.

    Sigh! It's many of the posters who who don't get technology, who think it's something mystical, magical and transformative. In the moral sense it isn't. Google is stealing these books as much as if, fifty years ago, it has hired typesetter to set the books in a new font. New font, new bits on hard drives in massive data centers, no difference.

     

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    Anonymous Coward, Aug 22nd, 2009 @ 8:59am

    my oversimplistic view:

    a failure of rights holders and adjudicators to fully understand technology (to the degree, e.g., that Google does), hence giving rise to a fear of technology (="the unknown") and efforts to keep reassuring grip on "the known".

    i like this post. it seems to capture the idea that by not understanding technology, and its true potentials, some are stonewalling it, and in "important" areas, such as this one

    in my opinion, one cannot evaluate technology if one does not understand it. alas that does not stop us from doing so- and by spreading such influence we are likely only holding ourselves back from progress.

    at one time it seemed like amazon would be the brave pioneer with book scanning. i think google's boldness is good.

     

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